The parties to a domestic relations case may refuse all services provided by the FOC. Many refer to this provision as the "opt out" law. FOC offices must open and maintain a Friend of the Court case file for all domestic relations matters, unless the parties opt out of the FOC system.
Requirement to Open FOC Case; Authorization for Parties to Opt Out
Michigan law requires the FOC to open and maintain a case for each domestic relations matter, unless the parties opt out of the FOC system. When parties opt out, they assume full responsibility for the administration and enforcement of the court's orders, and the FOC may no longer engage in those activities.
Statutory Procedure to Opt Out
In new and existing domestic relations cases, parties who agree to manage their own case must sign an acknowledgement, Form FOC 101 (Advice of Rights Regarding Use of Friend of the Court Services), which lists services that the FOC provides. By signing the form, the parties acknowledge that they will not receive the services.
The court must approve the agreement and enter an order directing the FOC to close its case file unless the court determines that one or more of the following are true:
- A party objects to the motion.
- A party is eligible for Title IV-D services because the party is receiving public assistance (see Section 3, "Public Assistance", below).
- A party is eligible for Title IV-D services because the party formerly received public assistance and an arrearage is owed to the governmental entity that provided the assistance.
- The record shows that a child support arrearage or a custody or parenting time order violation occurred within the previous 12 months.
- Within the previous 12 months, a party to the case reopened this or another FOC case.
- There is evidence of domestic violence or uneven bargaining positions and evidence that a party's decision to opt out of the FOC system is against the best interests of the party or a child.
- The parties have not filed form FOC 101 listing the available FOC services and acknowledging that the parties are choosing to do without those services.
The law prohibits parties from closing their FOC file if they are receiving or have received public assistance and an arrearage is owed to the state. Public assistance includes programs such as Temporary Assistance to Needy Families, (TANF), Medicaid, Food Assistance Program (FAP), child day care, and foster care.
Other factors that will prevent the parties from opting out of the FOC system include a history of domestic violence or uneven bargaining positions between the parties. If domestic violence has occurred, a party may feel coerced to opt out of FOC system even though doing so is against the party's or the child's best interests. The court may wish to check the record for certain indicators of abuse, such as personal protection orders.
When an FOC case file is closed and support payments are, at that time, being paid through income withholding, the FOC must send notice to terminate the income withholding to the payer's employer.
Support payments through MiSDU
If a party wants to ensure that all child support payments made after the FOC case file is closed will be taken into account in a possible future FOC enforcement action, than the opt-out order should require that those support payments be made through the MiSDU. If the MiSDU will remain involved, then the FOC cannot close its case file until notified by the MiSDU that the parties have provided the necessary information to enable MiSDU to process the support payments. If the parties do not choose to have payments made through MiSDU, and they subsequently opt back into the FOC, the FOC system will monitor only those support payments that fall due after the FOC case file is reopened.
Services the FOC cannot provide
Once an order exempting a case from FOC services has been entered, the parties assume full responsibility for the administration and enforcement of the court's orders. The FOC then cannot be involved in enforcement, investigation, or accounting functions for support, custody, or parenting time. This prohibition exists regardless of whether the support payments are being made through the MiSDU.
Opening or Reopening an FOC Case (Opt In)
Parties who have opted out of FOC services may change their minds. If either party requests services from the FOC, or applies for public assistance, the FOC is required to open (or re-open) its case file.
A party should file Form FOC 104 (Request to Reopen Friend of the Court Case) and Form FOC 23 (Verified Statement) with the FOC (if the order requires a Verified Statement to be filed upon opt in), and send a copy of Form 104 to the other party's last known address and to the court. The case file will be reopened when the FOC receives this information. The other party cannot object to the case being reopened.
When parties opt out of the FOC system, they may have support orders that do not satisfy statutory requirements for FOC cases. If the court order does not contain a provision that is required by either the Friend of the Court Act, the Support and Parenting Time Enforcement Act, or court rule, upon opening or reopening an FOC case file, the court must issue an order or amended order that includes the statutory provisions. FOC offices should use Form FOC 10 (Uniform Child Support Order) or Form FOC 94 (Order Correcting Omission in Order), as appropriate, to add the necessary provisions to the support order. The order that initially exempted the case from FOC services (FOC 102) should provide that these new orders could later be entered ex-parte.
If there is a dispute about support payments made during the time the case was not an FOC case, and the payments were not made through the MiSDU, the parties must ask the circuit court to resolve the dispute. Since the disputed payments were to have been made directly between the parties, the FOC does not have any evidence of those payments. The FOC cannot intervene other than to let the parties know they will need a judicial determination of the payment history.
Due to funding and staff limitations, courts should avoid using the FOC to recalculate support when the parties have not provided for record-keeping during an opt-out. A court should consider appointing a independent examiner or auditor, paid for by the parties, to determine if support is overdue. The court can then order a sum-specific due at the time the opt in occurs.
Direct Payments Prohibited
Current law, enacted prior to and without recognition of a statewide child support system, requires child support payments to be made through the MiSDU, "except as otherwise provided in the order or judgment". Federal law requires states to have one central entity through which all IV-D support payments must be made. Due to this conflict, Public Act 210 of 2004, effective October 1, 2004, eliminates the provision that allows a court order to exempt a case from being paid through the MiSDU. This means that all support payments must be paid through the MiSDU unless the parties follow the statutory procedures to opt out of FOC services.
IV-D Application Required for FOC Services
Public Act 210 of 2004, effective October 1, 2004, limits the FOC's responsibilities to perform activities under the Friend of the Court and Support and Parenting Time Enforcement Acts for cases in which a party has requested Title IV-D services, unless the FOC activity is required by federal law.
A party who does not sign an application for IV-D services is not opting out of FOC services. The procedure for parties to opt out is clearly prescribed in the law and outlined above. Rather, for cases that do not sign the application, the FOC can determine what services it may provide on the case, so long as federal requirements are met. The same is true for cases in which a party requests IV-D case closure. That is, the FOC must close the IV-D case status, but continue to provide non-IV-D services required by state and federal law.